Sharia on the Altar of the Federal Shariat Court

Tanweer Akhtar Shahid

Thinking of the state of Sharia in the Islamic Republic of Pakistan reminds me of the famous line of the Ancient Mariner where he cries “Water, water, every where, nor any drop to drink”. 

One can hear deafening noise of enforcing Sharia in Pakistan by both the leftists and the rightists to secure their worldly interests. However, practically and in essence, the louder the noise became, the national character severed its relationship more intensely with the Sharia. Thus we find the Federal Shariat Court having no relationship with justice based on Sharia which is the primary function of the court, rather it is a perfect embodiment of judicial and moral bankruptcy and completely lacks human decency. The case of a group of Ahmadis, challenging the infamous Ordinance XX of 1984, brought to the Federal Shariat Court, proves the truth of this statement in letter and spirit. 

For the sake of understanding we have divided this into three parts. 

1. The Background 

2. The Discussions 

3. The Conclusion

The Background

Ahmadiyyat is nothing but the true Islam. Hazrat Mirza Ghulam Ahmad, peace be upon him, claimed on Divine authority to have been appointed as Al-Imam Al-Mahdi and as the Promised Messiah to revive Islam and to re-establish its past glory, fulfilling prophecies found in all major world religions. 

Since the inception of Ahmadiyyat in 1889 until 1974, all efforts by so-called religio-social alliances miserably failed to stop the progress of Ahmadiyyat. In 1974 a bigger religiopolitical alliance was created and the Second Amendment to the 1973 Constitution was passed. 

The false pretext of Ahmadis not believing in Hazrat Muhammad, peace and blessings of Allah be upon him, as the last of the prophets was used and Ahmadis were declared not Muslims “for the purposes of the Constitution or Law”. (www.pakistani.org/pakistan/constitution/amendments/2amendment.html) Consequently Ahmadis were left with no option but to sacrifice all their worldly rights, including, but not limited to, the right to vote, enrolling in educational institutions, seeking jobs etc. 

The amendment that was being celebrated as a grand victory against Ahmadiyyat, to the utter surprise of its enemies, proved to be counterproductive. As declared in the Holy Quran, “Allah is the Best of planners”, (Surah Aal-e-Imran: V.55) so He caused Ahmadiyyat to enter a new era of progress. The Khalifa of the time, following the model conduct of the Holy Prophet^sa, admonished Ahmadis not to fret over the constitutional amendment as the Holy Prophet^sa did not fret over when infidels called him “muzammam”, the condemned one, instead of his holy name “Muhammad”, the most praised. The practical response of Ahmadis to this amendment was, as Shakespeare very aptly put it, was:

“What is in a name? That which we call a rose;

By any other name would smell as sweet.” 

Ahmadi Muslims passed by it with full dignity, as expressed by an Arab poet:

ولقد أمرّ على اللئيم يسبّنی

فمضيت ثمت قلت لا يعنينی

“I passed by a mean person who was swearing at me; I continued to proceed saying he does not mean me.” 

Following the advice of the Khalifa, Ahmadis remained contented that Allah had called them Muslims and continued to practice Islam in letter and spirit. Panicked and frustrated by this situation, using the amendment pretext, several civil suits were filed to take over Ahmadi mosques and to seek injunctions against Ahmadis. 

The plaintiffs alleged that although it was the exclusive right of Muslims but Ahmadi “place of worship is known as a mosque (Masjid) and they perform prayer in it which resembles the prayer in Shariat and includes Azan, Namaz, Qyam, Sajood, Ruku‘, reading of the Quran, saying Darood-o-Salam on the Holy Prophet and invoking benediction (dua).” (Abdur Rehman Mubashir v. Syed Amir Ali Shah, PLD 1978 Lahore 113; at 126)

As these suits reached the appeal stage, “Finally, in November 1977 the Lahore High Court passed a judgment dismissing orders of the subordinate courts granting injunctions against Ahmadis.” (https://appgfreedomofreligionorbelief.org/media/RESEARCH-DOCUMENT-1-discrimination-against-religious-minorities.-Analysis.pdf) 

Regarding the Sh‘aair (sanctified signs) the Court specifically held “They are as good Sh‘aair  for the Qadianis too since they consider them necessary as a matter of conscience to perform the duty of obedience to Allah.” (Abdur Rehman Mubashir v. Syed Amir Ali Shah, PLD 1978 Lahore 113; at 189-190).

 It was in line with a previous judgment holding “Except for some other minor differences the Qadianis do believe in the mission of Prophet Muhammad^sa, and the Holy Quran and the Traditions…” (Agha Abdul Karim Shorish Kashmiri and others Vs Province of West Pakistan PLD 1969 Lahore)

The frustrated enemies sought help from Zia-ul-Haq, the military dictator, who at that point in time, desperately needed political legitimacy to prolong his dictatorial period. This was an unfortunate but happy marriage of a dictator and the clergy. The couple had no hope of any issue so they quickly adopted the bastard baby born to Mr Doultana and the Ahrars in 1953, who was “still alive and waiting for some-one to pick it up.” (Report of the Court of Inquiry Constituted Under Punjab Act II of 1954 to Enquire into the Punjab Disturbances of 1953, p. 286) The baby was used as a simile for illegitimate Ahrari demands against Ahmadis. Zia accepted all these demands through the promulgation of infamous Ordinance XX of 1984. 

The Federal Shariat Court under article 203 D of the Constitution “could strike down any law as being repugnant to Quran and Sunnah”. (Error at the Apex, Mujeeb-ur-Rahman)

Therefore, a few Ahmadis, in their personal capacity, challenged the religious validity of the ordinance “on the ground that it violated Sharia.” (The Nation and Its Heretics: Courts, State Authority and Minority Rights in Pakistan, Sadia Saeed, Indiana University, Bloomington, p. 1)

The proceedings and the judgment both make an interesting but sad story of how “both juridical outcomes and legal reasoning about Ahmadis” were reversed. (ibid., p. 3) The Federal Shariat Court was a creation of an absolute dictator who employed it as a “strategic tool… to exert control over the judiciary”. (ibid., p. 38)

The Discussions

Mr Mujeeb-ur-Rahman, one of the petitioners who also argued the case before the Court, writes that in order to support the petition, more than one hundred and fifty references were attached. For every prohibition, specific references were given from the Holy Quran and the Sunnah, explaining through the commentaries from all phases of Islamic history to the present time. The debate continued for about fourteen days, discussing every point in its fullest details. (Ordinance XX of 1984 Before the Federal Shariat Court [Urdu], Mujeeb-ur-Rahman, pp. 7-8)

One cannot help but to appreciate the intelligence of Mujeeb-ur-Rahman Sahib who declared his faith as Islam in the Court and started his opening speech by reciting the Shahada (“I believe that there is none worthy of worship except Allah and that Muhammad is His messenger”) and the Khutba Masnoona, the invocation used by the Prophet^sa of Islam.

Mujeeb-ur-Rahman Sahib writes that he established three principal stands to argue the case. The first of them had been that as the Court had no power to strike down the Constitutional Amendment even if proved it had no justification, therefore, notwithstanding the Constitutional Amendment, the prohibitions in the Ordinance were to be considered on the anvil of Holy Quran and the Sunnah. 

The second of them had been that as per the intent of Article 203 D of the Constitution, although other Islamic sources would be consulted for the sake of proper understanding of any injunction of the Holy Quran and the Sunnah, but in order to test the justification of the laws the only yardstick on which the decisions should be based should be the Holy Quran and the Sunnah, even excluding all shades of Islamic jurisprudence. 

The third and the last of them had been that as the decision should be based on the Holy Quran and the Sunnah, it should also be decided what principles be applied to understand the injunctions of the Holy Quran and the Sunnah. The following five principles for the interpretation of the Holy Quran, as agreed by classical and modern Muslim scholars, were presented before the Court by the petitioners: 

1. The Holy Quran 

2. The Holy Prophet’s^sa sayings and established conduct 

3. Sayings of the Companions^ra of the Holy Prophet^sa  

4. The Arabic language

5. The contextual requirements of the statements. (ibid. pp. 15-17) 

Mujeeb-ur-Rahman Sahib writes that it was contended that: 

a. “The Ordinance violated the letter and spirit of Quranic injunctions about freedom of conscience and religious liberty.” 

b. “The Quran and Sunnah do not justify any compulsion in the matter of faith.” 

c. “What has been declared to be lawful by the Quran and the Sunnah cannot be declared unlawful by State authorities and that the acts declared laudable and commendable by Quran and Sunnah cannot be made criminal offences punishable under law.” 

d. “There is nothing in the Quran and Sunnah to stop a non-Muslim from believing in and declaring the unity of Allah or to acknowledge the Holy Prophet^sa of Islam to be truthful in his claim or to adopt the teachings of Quran as a code of life or to act upon the injunctions of Islam if he voluntarily so chooses.” 

“There were lengthy arguments on both sides.” (Error at the Apex, Mujeeb-ur-Rahman, www.thepersecution.org/archive/erratapex/04.html) Under the special instructions of Hazrat Mirza Tahir Ahmad, Khalifatul Masih IV^rh, the petitioners placed before the Court the following questions:  

1. “Does Islam entitle and allow a non-Muslim to declare the unity of Allah?”

2. “Does Islam entitle a non-Muslim to acknowledge the Holy Prophet^sa as truthful in his claim?” 

3. “Does Islam entitle a non-Muslim to acknowledge the Quran as furnishing a good Nizam-e-Hayat i.e. way of life and to treat it as worthy of obedience?” 

4. “Is [it] permissible or not for a non-Muslim to act upon the Injunctions of the Holy Quran if he so likes?”

5. “If the answer be in the negative, where is the injunction in the Quran and the Sunnah in support of this negation?” 

6. “What course of action does the Quran propose or provide for a person who is not considered Muslim nor has any right to be so considered by believers, in the truthfulness of Quran, in the prophethood of Muhammad Rasulullah^sa and the Oneness of Allah.” (PLD 1985 FSC, p. 89) 

The Court dealt with these questions saying:

“The first four questions posed by Mr Mujeeb-ur-Rahman have to be answered in the affirmative. There is no bar – Constitutional, legal or [Shar‘i] against the right of a non-Muslim to declare the unity of Allah, to acknowledge the Holy Prophet, peace and blessings of Allah be on him, as truthful in his claim, to acknowledge the Quran as furnishing a good way of life and to act upon its injunctions. The fifth question does not arise in view of the affirmative answer of the fourth question. A clear answer to the sixth question is that such a non-Muslim is to be dealt with like other minorities, subject to the conditions imposed by the Quran and the Sunnah which shall be considered at the appropriate place.” (PLD 1985 FSC, p. 93)

The court categorically stated:

“The Muslim Sharia affords full protection to the practice of religion by the non-Muslims as well as to its profession.” (ibid.)

The Court goes on to say that:

“Islam teaches absolute tolerance in matters of religion and leaves it to the conscience of a man to accept the religion of Islam. No compulsion in this respect is allowed in Islam.”

Mujeeb-ur-Rahman Sahib challenged the ban on Azan – Islamic call to prayer – by Ahmadis. He writes that he “mainly relied upon verses 5:2 and 41:33 of the Holy Quran. In the verse 5:2 ‘best of utterance’ refers to Azan, which cannot be made punishable. It was further argued that if a religious practice is common between Muslim and non-Muslim it cannot be denied to non-Muslim and that according to Quranic mandate Muslims are required to cooperate with non-Muslims in such matters. It was also argued on the authority of Quranic text that sacred rites are not to be desecrated or denied just because non-Muslims wish to carry them out. Azan was such a sacred rite. It was also argued, again on the authority of Quranic text, that Muslims should cooperate with non-Muslims on the basis of a common denominator.

“Confronted with the thrust of the argument based on the unimpeachable Quranic text, at one stage the Counsel for the Federation found no escape but to argue that the particular portion of the verse of the Quran stood repealed.” (Error at the Apex, Mujeeb-ur-Rahman)

It is interesting to note that regarding the Sh‘aair the Court mentions arguments presented by both sides. Then, it states, “The opinion of Pir Muhammad Karam Shah, now a Judge of the Supreme Court Shariat Bench, in his well-known commentary Ziaul Quran favours the opinion of Mr Mujeeb-ur-Rahman.” (PLD 1985 FSC, p. 111)

On this situation, Mr Mujeeb-ur-Rahman comments in his book by saying:

“The court did not record any finding as to which of the two contending views prevailed with the court. Nor did it record any reason either for accepting or for rejecting one view or the other and felt content merely with the recording of the two views. The inference is obvious.” (Error at the Apex, Mujeeb-ur-Rahman, www.thepersecution.org/archive/erratapex/04.html)

This was not a case of seeking validity and correctness of the Ahmadiyya version of Islam from a court that comprised of judges who, in order to secure these jobs for themselves, had demonstrated their partiality and bias by taking oath and rejecting the claim of the holy founder of Ahmadiyyat. It was a case asking the Court to strike down a law that was categorically repugnant to Quran and Sunnah. But the Court permitted the respondents to enter into irrelevant discussions about doctrinal issues during the proceedings. These issues were Khatm-e-Nubuwat (finality of prophethood), jihad, prophecies of the Promised Messiah^as, “insult” to Jesus Christ^as, praise of British Empire, etc. The petitioner accepted this challenge and chased them in that haven as well. The petitioners explained to the Court that for the sake of argument, even if it was proved that Ahmadiyya interpretations were incorrect, did that justify the prohibitions in the Ordinance XX according to Holy Quran and Sunnah? Did it justify that religious freedoms of a community be taken away on the basis that the religious doctrines of that community could not be approved and accepted by the majority of a country? What actually happened in the Court during these proceedings can precisely be known from the following:

Mr Mujeeb-ur-Rahman expresses his deepest sense of gratitude to Almighty God for His miraculous help and support that he received while he was arguing this case. In his book (Ordinance XX of 1984 Before the Federal Shariat Court [Urdu]) he devotes a full chapter (p. 20) on his recollection of Divine favours that he received and witnessed during those proceedings. He also mentions the level of panic in the respondents’ camp. 

The manner in which the Sharia was being interpreted by the respondents in the Court to oppose the petition was not different from the one in which it is being interpreted from the pulpits of the mosques even today. Realising the revulsion of human nature against such a version of Islam and expected criticism from the international community, Justice Fakhar Alam could not help but comment, “In such a situation would we be able to show our faces to the present world?” (Ordinance XX of 1984 Before the Federal Shariat Court [Urdu], Mujeeb-ur-Rahman, p. 32) Qazi Mujeeb-ul-Rehman, showing utter disregard to human nature and prospective censure from international community, sticking to his version of Sharia retorted, “I am talking of Sharia and I don’t care about anything else”. (ibid., p. 34)

Mr Tahir ul Qadri also appeared before the Court as a jurist consult. Summing up why he was called by the Court and what was happening in the Court, all this he tells about in an inside story. Mr Qadri describes the situation of respondents in the Court who appeared to oppose the petition. He says:

“Scholars from around the country appeared before the Court – the foremost scholars. When they appeared and the hearing came to a complete end, I swear by Allah as my witness and proclaim that there is none worthy of worship except Allah and that Muhammad is His messenger, all of them were defeated. This is the inside story and I am telling you today the thing that happened inside. They could not secure the dismissal of the appeal made by Qadianis. And they made themselves an object of laughter. Included among them were scholars from Tahaffuz Namoos-e-Resalat, Tahaffuz Khatam-e-Nubuwat, Ulama Deoband, Ahl-e-Hadith, Ahl-e-Sunnat; all of them appeared. They could not answer any one of the questions that was put to them by the Court, which were raised by Qadianis. Whosoever from the scholars appeared before the Court would start discussing the issue of his [Hazrat Mirza Ghulam Ahmad^as]  prophethood, that he made a claim to prophethood [in light of the Hadith] ‘There shall be no prophet after me’ and [the status of] ‘Khatam-un-Nabiyyin’ and that a person who claimed to be a prophet would naturally become an infidel and apostate. Therefore, they said, they [Ahmadis] are not Muslims. The Court said that this was not an issue before the Court. This had been settled in the 1973 Constitution in the time of Mr Bhutto through the parliament. They [Ahmadis] had been declared a non-Muslim minority. So his [Hazrat Mirza Ghulam Ahmad^as] claim to be a prophet, being an infidel and apostate was not a matter under the consideration of the Court. They would come and present arguments that he was one-eyed, that he used to ask women to press his legs, that he was not a believer and that he used to say that he received revelations [which made no sense to them]. They were citing this sort of references just to cause laughter. This very act of those scholars rendered the sanctity of religion to a laughing stock. The scholars spoke about such things while the Court laughed at them. The Court told them that in doing so, they would lose the case! None of these matters was under consideration. They [Ahmadis] had asked a simple thing – why did the Constitution declare them non-Muslims? They demanded their freedom of religion being a non-Muslim minority. They said, ‘This is what our religion requires from us and we should have the right to it. Why interfere in it? Present your arguments on this issue from the Sharia whether we can or cannot use such and such words as a matter of our freedom of religion.’ When all of the scholars had appeared before the Court and the Court became extremely upset, I was on a tour in Norway. I received a telephone call. None of them argued about the matter before the Court. This is their problem even today. They make the non-issue an issue, thereby confusing matters. This is the reality. They present their arguments about his [Hazrat Mirza Ghulam Ahmad^as] being an apostate and that is not an issue before the Court. The issue is what freedoms they have as non-Muslim minority.”

Mr Qadri takes credit and claims that it was exclusively due to his representations before the Court that the petition was dismissed.

I conclude this part on what Mr Mujeeb-ur-Rahman writes in his book:

“The discussion was very lengthy and many issues came under discussion. The complete discussion that continued for fourteen days cannot be reduced to writing.” (Ordinance XX of 1984 Before the Federal Shariat Court [Urdu], Mujeeb-ur-Rahman, p. 48)

Conclusion

Through a short order, pending the detailed judgment by the consensus of all the five judges, the petition was dismissed. (PLD 1984 FSC 136) As Faiz Ahmad Faiz once said, “Par terey ehad sey agey to ye dastoor na tha” [This was not the law before your time]. (Quoted by Hazrat Mirza Tahir Ahmad^rh, Khutbat-e-Tahir, Vol. 3, p. 399) The judgment presented a textbook example of “a historical reversal, of earlier court commitments to safeguarding rights and religious freedoms of minorities”. (The Nation and Its Heretics: Courts, State Authority and Minority Rights in Pakistan, Sadia Saeed, Indiana University, Bloomington, pp. 1-2)

The reasons that could not be accepted by the independent judiciary since 1953 to 1978 became acceptable by it under a dictator’s rule. The judges in 1953, exposing the unreasonable nature of the demands against Ahmadis said that the Prime Minister “could not have accepted the demands as it would certainly have exposed Pakistan to ridicule and disillusioned the international world of her claims as an advancing, progressive and democratic State.” (Report of the Court of Inquiry Constituted Under Punjab Act II of 1954 to Enquire into the Punjab Disturbances of 1953, p. 264) But in 1984 the judges, by giving this judgment that justified the acceptance of these demands by a dictator, practically declared: Who cares about Pakistan? 

The Court, showing its utter disregard to human decency, incorporated in its detailed judgment irrelevant material and presented in judicial garments what was already available in the public domain as malicious content and hate speech against Ahmadis and was being propagated by the clergy. (Ordinance XX of 1984 Before the Federal Shariat Court [Urdu], Mujeeb-ur-Rahman, p. 203) The petitioners protested against this illegal, illogical and indecent attitude of the Court in their appeal. (ibid., p. 213)

To the utter astonishment of the international legal fraternity, the detailed judgment was signed by the four judges while the fifth judge’s opinion, who was the Chief Justice of that Court, was not mentioned anywhere. (Gustaf Patern, (1987) Pakistan: Human Rights after Martial Law. Geneva: International Commission of Jurists. p. 62) Though the petition was dismissed, the Court accepted almost all the arguments of the petitioners. (Ordinance XX of 1984 Before the Federal Shariat Court [Urdu], Mujeeb-ur-Rahman, p. 201) As a matter of faith, all five judges were not only themselves a party to the petition, rather they also lacked the moral courage to declare “I disapprove of what you say, but I will defend to the death your right to say it.” 

As a conclusion of the conclusion, we would like to quote here the verse of Mirza Ghalib as cited by Hazrat Mirza Tahir Ahmad^rh when he commented on the expected outcome of the petition. Hazrat Mirza Tahir Ahmad, Khalifatul Masih IV^rh says, “I had written to the petitioners at the very beginning of the proceedings:

‘Qaasid ke atey atey khat ik aur likh rakhun; mein janta hoon jo vo likheingey javab mein’

[Better I write another letter before the messenger returns; I know what they will be writing in reply to my letter already sent.] (Hazrat Mirza Tahir Ahmad^rh, Khutbat-e-Tahir, Vol. 3, p. 447)

The petitioners made an appeal before the Shariat Appellate Bench of the Supreme Court, but on the hearing date they found that two of the judges to hear the appeal had already publically approved the legality of the infamous Ordinance XX of 1984. These judges insisted to continue to sit on the bench. There was no wisdom to argue an appeal before judges sitting with such closed minds so the petitioners sagaciously withdrew their appeal.